Warning of legal battles, damage to relationship over Treaty clauses review

Officials have told the Government its policy to review legislation including Treaty of Waitangi provisions could risk further legal battles, damage Māori-Crown relations, and won’t stop the courts from “reading the Treaty in anyway”.
Earlier this week, Newsroom reported the Government had identified 28 laws in the scope of its review.
The review comes out of the NZ First-National coalition agreement promise to conduct a comprehensive review of all legislation (except when it is related to, or substantive to, existing full and final Treaty settlements) that includes ‘The Principles of the Treaty of Waitangi’.
The coalition document says the Government will replace all such references with specific words relating to the relevance and application of the Treaty – or repeal the references entirely.
The first Treaty provisions clauses appeared in law in 1975, with clauses mentioning Te Tiriti and the Crown’s obligations since appearing in dozens of laws.
Last month, the Cabinet agreed to the scope and purpose of the review, confirming the specific 28 laws that will have their Treaty provisions changed or scrapped.
These range from the Resource Management Act and the Education and Training Act, through to the Smokefree Environments and Regulated Products Act and the Hauraki Gulf Marine Park Act. 
The Government ruled all Treaty settlement laws out of scope, and decided a further five laws were also out of scope as they raised similar issues to Treaty settlement legislation, were private acts, or had constitutional status. These included the Treaty of Waitangi Act, the State-Owned Enterprises Act and the Public Finance Act.
Cabinet made a decision on the scope of the review last month. In the related cabinet paper, Justice Minister Paul Goldsmith laid out concerns from officials, potential risks and suggestions for mitigation.
Goldsmith said officials had advised him the review could lead to further legal challenges, both at the Waitangi Tribunal and related litigation in the courts.
“This would cause cost to government in terms of time, focus, resources and, potentially, interruption to policy programmes,” the paper said.
This policy is already the subject of a Waitangi Tribunal urgent inquiry into the Government’s Treaty Principles Bill and Treaty Clause Review.
The tribunal’s interim report on the two policies is scathing, and while much of the focus has been on the Treaty Principles Bill, the tribunal says some Māori consider the decision to undertake the review without prior engagement is also inconsistent with the Treaty.
Goldsmith and his officials noted the impact this view would have on the Māori-Crown relationship.
“The review will therefore have a significant impact on Māori and may have a detrimental impact on Māori Crown relations.”
The paper went on to say: “Officials advise that good faith engagement with Māori will mitigate risks to the Crown Māori relationship.”
However, this risk was unlikely to be completely mitigated, it said.
Engagement with Māori and stakeholders would need to be bespoke for each specific provision, Goldsmith said, adding that the relationships and expertise did not sit with one Māori group. 
“Ensuring appropriate engagement will require time, resource, and coordination between agencies. Engagement should be conducted in good faith, be meaningful, and allow adequate timeframes, given the scale of the review.”
He went on to say officials suggested staggering the review to maximise efficiency and ensure meaningful engagement could occur.
On timing, the official advice cited by the Waitangi Tribunal in its interim report suggested it would take longer than the parliamentary term to complete the review, and there would be a significant burden on those drafting the legislative changes.
“A review of this scale will require resourcing across multiple agencies and the scale of legislative change will likely mean large and complex legislative drafting and a lengthy parliamentary process,” Goldsmith said in his cabinet paper.
Goldsmith has since told Newsroom he now believed the review could be completed this term.
In separate briefing material provided to the Waitangi Tribunal during its urgent inquiry, Ministry of Justice officials said the review had constitutional implications due to the constitutional significance of the Treaty and the Treaty clauses themselves.
“The Treaty is a constitutional document and Treaty clauses are part of an ongoing constitutional dialogue. Reviewing Treaty principles clauses across a large number of Acts will have implications for the way the Treaty of Waitangi is reflected, understood and applied in New Zealand’s legal system,” officials said.
The Ministry of Justice advice cited by the Waitangi Tribunal and the Cabinet paper both raised questions over courts’ interpretation of Treaty provisions, and how that could be affected by this review.
Ministry of Justice officials noted that NZ First’s concern that some of the clauses included in legislation had generated litigation, and that the courts had broadened the scope of the clauses “beyond Parliament’s mandate”.
However, officials said the courts would “read the Treaty in anyway” even if Treaty clauses were removed from legislation.
“If the purpose of the review were to focus the courts and decision makers on matters agreed by Parliament when considering how the Treaty applies in any given case, then it is unlikely that removing Treaty principles from clauses will limit the courts’ consideration,” officials said, citing a Supreme Court decision between Trans-Tasman Resources and the Taranaki-Whanganui Conservation Board.
“The courts will read the Treaty in anyway if it is not specifically addressed,” they said.
Goldsmith said the driving force beyond the review was to provide certainty and clarity around when it was appropriate and relevant to include a Treaty clause, and be more specific and consistent in the wording of the clauses.
During the past three decades, Parliament had not always been clear about what specific Treaty provisions meant or were trying to achieve, Goldsmith told Newsroom earlier this week.
“That’s left the courts, and the agencies themselves, and businesses and local councils all to free-range as to what it does mean and doesn’t mean.
“And that’s created uncertainty, and frankly some outcomes that need some revision,” he said.
“We’re trying to honour Treaty commitments, while at the same time, never losing sight of the basic expectations of people living in a modern, democratic society, primarily to be treated equally and to have equality before the law.”
However, the Cabinet paper suggested the review could have the opposite effect.
“Officials advise that the courts will continue to apply the Treaty in the interpretation of legislation, but removing reference to the principles of the Treaty could remove the framework for doing so, thereby creating uncertainty as to how this reconciliation/application will be approached.”
The Cabinet paper went on to say: “It could also create uncertainty for decision-makers under existing legislation.”
The paper also made mention of other policies that interacted with the review, namely the Treaty Principles Bill and the commitment to “refocus the scope, purpose, and nature of [the Waitangi Tribunal’s] inquiries back to the original intent of that legislation”.
“One purpose of the proposed Treaty Principles Bill is to ensure that there is greater certainty and clarity about the meaning of references to the Treaty principles in legislation,” Goldsmith’s paper said.
“This means that the proposed Treaty Principles Bill could affect the meaning of the Treaty principles provisions being reviewed.”
Newsroom understands this is not a suggestion that the Treaty principles, as defined in the Government’s upcoming bill, would be used to inform any amended or future Treaty provisions as the bill is not expected to pass under this Government.
Goldsmith is yet to take anything to Cabinet regarding the rescoping of the Waitangi Tribunal.